MASOOD AKHT AR SHAHEEDI (ACCOUNT ANT MEMBER) .---The titled appeal has been filed by the appellant- registered person against the order . No, 28/2015 dated 14.01.2015 passed by the CIR (Appeals), Faisalabad.
2. Briefly stated facts of the case are that during scrutiny of appellant's sales tax record by the Directorate of Intelligence and Investigation-FBR for 02/2010, it was observed that appellant has allegedly , adjusted input tax worth Rs.501,531/- against fake invoices issued by M/s. Land Star Corporati on which is a dummy/fictitious registered person without having any back up of purchases. Consequently , appellant was called upon with a show- cause notice dated 08-08-2014 for recov ery of already refunded amount of sales tax asking him to pay back the amount of tax under section 11(3) of the Act, 1990 against which explanation tendered by registered person was treated unsatisfactory . Resultantly , adjudication proceedings were culminated in passing of an order dated 15-08- 2014 which was challenged before the learned CIR(A) who also upheld the liability despite submission of relevant records. The appellant being discontented with treatment met out by both the authorities below , has filed the second appeal before this Tribunal assailing the treatment accorded by both the lower fora. Initiating the arguments, learned counsel for the appellant has assailed that impugned show-cause notice issued against invoices of the alleged supplier is not only duplicate but also equivalent to impede the appellant with double taxation and double jeopardy as adjudicat ion of the instant matter has been concluded in its favour in the first round of litigation upto the level of ATIR, Laho re against which departmental reference is pending adjudication before Hon'ble High Court, Lahore. In support of his contention, learned counsel placed on record copies of order of CIR(A) and judgment of ATIR, Lahore as well as copy of departmental reference application filed before Hon'ble High Court, Lahore. On the other hand, when departmental representative confronted with the tax situation cited supra, in counter arguments, he has assailed the case on similar grounds and nothing newel, except to reiterate earlier set of contentions, has been put forth by him and fully supported the orders passed by both the authorities below simply re-endorsing the basis evolved therein.
3. We have heard both the rival parties at a considerable length and have also gone through the relevant case record with their able assistance, we have no hesitation to conclude that this is a case of double jeopardy of tax involving the same amount, same tax period, same supplier with same alleg ation which has already been adjudicated to the level of Appellate Tribunal and before us, there is no need to interfere the matter again and if we again decide the same matter then the impact of the same comes under the ambit of double taxation which is illegal. After, the first show-cause notice, initiation of fresh proceedings by way of issuance of second show-cause notice creating tax liabilities on similar grounds is not only illegal and unlawful but also stands without lawful jurisdiction that is why issuance of multiple show-cause notices is always discouraged and crucified by the superior courts. Repeated issuance of show-cause notices on the same issue constitutes fishing enquiries not permitted under the fiscal laws and natural laws. It is a settled principle of law that re-agitating of the same issue by the tax functionaries is against all the principles of administration of justice and fair play. Reliance is placed on the judgment of this Tribunal in case of "Messrs Ahsan Enterprises, Faisalabad v. The CIR(A), Faisalabad and others " reported as (2015 PTD (Trib.) 1839). We have also observed with grave concern that issuance of second show- cause notice is patently illegal and unlawful particularly when the same demand of sales tax of Rs,501,531/- against invoices of M/s. Land Star Corporation involving same tax period of February-2010 with the same charge sheet has already been adjudicated in favour of the appellant by the learned CIR(A) vide its Order-in-Appeal No, 332/2013 dated 22-04-2013. Against this order , the department filed the second appeal before this ATIR, Lahore which was dismissed vide S.T.A. No, 762/LB/2013 dated 11-11-2015 and the order of Tribunal was assailed by the department before Hon'ble High Court, Lahore by way of filing of Sales Tax Reference No, 137/2015 currently pending adjudication and if any grievance that the department may have with respect to impugned recovery of sales tax which have already been adjudicated in favour of appellant, in the first round of litigation, should be raised in departmental reference application because issuance of multiple show-cause notices on the same cause of action would not only defeat rationality and logic but also "due process of law". In similar situation, Hon'ble High Court, Lahore has set aside the second show-cause notice in case of "Messrs K.B. Enterprises, Faisalabad v.
Federation of Pakistan and others" reported at (2016 PTD 483). The relevant excerpt of the said judgm ent is as under- "I have heard both the learned counsel and find that admittedly an appeal is pending on the same matter with respect to the same allegations and the same amount of Rs,1,850,156/-. Since, the appeal of the Respondent Department is pending, there is no occasion to issue a fresh show-cause notice. Therefore, the impugned show- cause notice is set aside and the Respondents should pursue their appeal before the Appellate Tribunal Inland Revenue. Petition is allowed in the above terms."
4. In view of above, we have no reason to disagree with the judgment rendered by the Hon'ble High Court and for our own reasons given above concur with its judgment therefore, the impugned second show-cause notice and consequent orders are declared illegal, unlawful and thus hereby set aside. Resultantly , titled appeal filed by the registered person is accepted.